CONSTITUTIONAL STUFF (pg. 1 outline) Due Process o Fundamental right vs. non-fundamental right Equal Protection o Strict scrutiny, intermediate, rational basis, rb w/ bite RIGHT TO PRIVACY (pg. 2 outline) Griswold: (contraception) Eisenstadt: individual right Roe v. Wade: right to abortion but not absolute o Trimester Framework: Lawrence v. Texas: same-sex couples. o conduct in private. GETTING MARRIED (pg. 4 outline) Loving v. Virginia: equal application not enough (interracial marriage) Zablocki: o directly and substantially interferes with a fundamental right must be narrowly tailored to an important state interest. Turner v. Safley: Zablocki applies to prisoners. (RB for prisoners’ rights) Goodridge: o Same-sex marriage ok in MD Incest (pg. 6 outline) Polygamy (pg. 7 outline) Age Restrictions (pg. 7 outline) Annulment based on Fraud (pg. 8 outline) o Blair v. Blair (he would have married her anyways) Procedural Restrictions/Void and Voidable Marriages (pg. 9 outline) o Requirements: solemnization/licensing o Common law marriage (pg. 10 outline) REGULATING THE FAMILY Tort Actions Against Third Parties (pg. 11 outline) o Alienation of affection and criminal conversation o Intentional Infliction of Emotional Distress Tort Actions Between Spouses – Interspousal Immunity & Evidentiary Privilege (pg. 12 outline) Domestic Violence (Tort and Criminal Law) (pg. 13 outline) o Battered Women Syndrome: Hawthorne v. State State Protection in DV (pg. 14 outline) o De Shaney: usually state has no duty to protect o Town of Castle Rock v. Gonzales: no right in TRO enforcement Marital Rape: People v. Liberta: no diff b/t marital and non-marital rape Work and Family o Pregnancy and Due Process (pg. 15 outline) Cleveland Board of Education v. LaFleur. (mandated leave) Pregnancy Discrimination Act o Pregnancy and Equal Protection (pg. 16 outline)
PDA as a floor rather than a ceiling. CA can give extra protection. FMLA (pg. 16 outline) o Sex-stereotyping (pg. 17) o Breastfeeding: not fundamental right; CA requires accommodations. ALTERNATIVE FAMILIES (pg. 17-18 outline) What’s a Family? o Communes: US Dept of Agriculture v. Moreno o Moore v. City of East Cleveland: statute prohibited g’kid from living there Unmarried Couples: Property Distribution (pg. 18) o Marvin v. Marvin: express agreements will be enforced o ALI: Domestic Partners (status-based rule) o Approaches to Unmarried Couples: enforce K, don’t enforce, status-based Unmarried Couples: Tort Recovery (pg. 19 outline) o Graves v. Estabrook: Negligent Infliction of Emotional Distress. o Tests: physical impact, zone of danger, CA (“closely related” issue) o Other torts: loss of consortium and wrongful death Unmarried Couples: Medical Decision-Making (pg. 19 outline) o In Re Guardianship of Kowalski: standard: ward’s best interest. Unmarried Couples: Domestic Violence (pg. 19 outline) o Same-sex: State v. Yaden: protected from DV o Opposite-sex: Ohio v. Carswell: protected too Unmarried Couples: Familial Benefits (pg. 20 outline) o National Pride, Inc v. Governor of Michigan: Statute prohibited recognition of anything resembling marriage. o Even in states recognizing other relationships, some benefits are federal o Housing: Braschi v. Stahl Associates Co. (rent control ok for same-sex) o Inheritance: Vasquez v. Hawthorne (was ok in status state) most states: property will NOT go to your non-marital partner. Same-Sex Couples: status of laws today (pg. 21) Interstate Recognition Issues (pg. 21 outline) o Full Faith and Credit Clause (marriage is not a judgment – no FF&C) o DOMA Dissolution of Same-sex partnerships (pg. 21-22 outline) o DOMA allows states to refuse recognition and thus not dissolve o Gonzalez v. Green (if void in their home state, void in MA too) o Burns. v. Burns: Mom either gives up visits w/ kifs or living w/ partner PARENTHOOD (pg. 22 outline) Establishing Paternity o Federal laws Non-Marital Children (pg. 23-25 outline) o Stanley v. Illinois: Unmarried not necessarily not be considered a parent. o Cases after Stanley: “biology +” o Uniform Parentage Act: states only have to adopt a registry o Michael H. v. Gerald D.: bio + AND look like family o In Re Nicholas H: presumptions only rebutted in appropriate actions. Extending Paternity Rights to Same-Sex Couples (pg. 25 outline)
o Elisa B. v. Superior Court: holding out + not appropriate action to rebut. o Two women can be parents; just not three people Assisted Reproductive Technology (pg. 25 outline) o In Re Adoption of Anonymous: child conceived by AID during a marriage is a child of the marriage. o UPA (1973 & 2002 versions) (pg. 26) o Unmarried Couples and AI: (pg. 27) In Re Parentage of M.J.: need written consent to get support UPA: applies to unmarried couples too. Intent-based. o The Sperm Donor (pg. 27 outline) Jhordan C. v. Mary K.: didn’t get physician, donor has rights o Surrogacy (pg. 28-29 outline) Potential requirements In the matter of baby M.: Johnson v. Calvert: Maternity under the UPA (pg. 29) recognizes both genetic and giving birth. Intent breaks tie CA law. ADOPTION (pg. 29 outline) ICWA (Indian..) o In re Baby Boy C.: no “existing Indian family exception” Only good cause Stepparent and Second Parent Adoption (pg. 30 outline) o Adoption of Tammy: termination of rights not necessary first. o CA: adoptions limited to couples in intimate relationships (by practice) o Finstuen v. Oklahoma: FF&C applies to all judgments - adoptions CHILD ABUSE (pg. 32 outline) In Re Juvenile Appeal: 96 hour hold provision met strict scrutiny Newby v. United States: Parental defense: truly discipline & reasonable force CHILD NEGLECT/ REMOVAL (pg. 33-34 outline) Physical Neglect: In re A.H: no punishment for lack of money. Medical Neglect: In re Phillip B. (factors, CA law, Child Abuse Amendments) Emotional Neglect: In Re Shane T.: need not be inflicted by physical force Sexual Abuse: M.W. v Department of Children & Family Services: b/c severity of potential harm is so great, it is intolerable to allow even a low probability of it. DIVORCE (pg. 34 outline) Fault Grounds: (pg. 34-35 outline) o Adultery: Lickle v. Lickle opportunity & disposition o Cruelty: Muhammad v. Muhammad (Islam community) o Desertion: Reid v. Reid (and elements) Defenses to Fault Grounds (pg. 35 outline) o Recrimination (both guilty) o Condonation (spouse forgave) o Others: connivance and collusion No-Fault Divorce (pg. 36 outline) o CA (irreconcilable difference or incurable insanity) o UMDA (irretrievable broken marriage)
o States differ and mix it up. See outline. (pg. 37) o Fault re-appearing in tort cases: Feltmeier v. Feltmeier (IIED) Jurisdiction for Divorce and Access to Divorce (pg. 38 outline) o Economic Obstacles: Boddie v. Connecticut: Due process o Jurisdiction to Grant Divorce: In Re Marriage of Kimura Just need one party domiciled in the state Bilateral divorce decree: court has PJ over both parties Ex Parte divorce decree: court has PJ over only one party o Residency Requirements (in addition to jx) to get divorced. (pg. 39) o Full Faith & Credit – divorce decrees given FF&C o Domestic Relations Exception to Diversity Jurisdiction: FINANCIAL CONSEQUENCES OF DIVORCE (pg. 40 outline) Jurisdiction: court needs PJ over both parties. Different states, use min contacts Property Theories (pg. 40) o Community property (50/50 or equitable distribution) o Separate property/common law (most equitable distribution) UMDA – Property (pg. 41) Mani v. Mani: economic misconduct or egregious misconduct considered. Maintenance / Alimony (pg. 41 bottom) o UMDA: only if can’t support self or has child and shouldn’t work. o CA considers standard of living, DV, and others (pg. 42) o Rosenberg v. Rosenberg: non-$ contributions by W Modification (pg. 44): property distribution not modifiable; support is Change in Circumstances re: spousal support (pg. 43 outline) o Lucas v. Lucas: de facto marriage o CA: rebuttable presumption of cohabitation changing need. Special Circumstances (pg. 43-44) o Appreciation of property o Dissipation o Attorney’s fees o Bankruptcy: Intangible Property (pg. 45-46 outline) o Pensions/benefits: Bender v. Bender – unvested pension is property o 3 ways to value: present value, present division, reserved jurisdiction. o Investment in spouse’s future success (degrees) PREMARITAL CONTRACTS (pg. 46-47 outline) Simeone v. Simeone: regular contracts unless fraud, etc. Binek v. Binek: fairness at both time of agmt and time of divorce. ALI: 30 days UPAA (Uniform Premarital Agreements Act): [to invalidate: unconscionable at time of signing + lack of disclosure; or not voluntary] CA: Property distribution- 7 days, counsel, waiver Separation agreements (see pg. 53-54 outline) o Provisions about children: looked at more carefully o Merger & incorporation
o UMDA: can include most things o ALI: more protective. (see outline) CHILD SUPPORT (pg. 47 outline) Congress requires guidelines – states approaches: (pg. 48) o Percentage of income o Income shares (CA) o Delaware-Melson? Post-majority support: Curtis v. Kline: no rational basis Modification of Child Support (pg. 49 outline) o Standard for initial determination – child’s best interest; higher for modification – generally substantial change in circumstances. o Upward Modification Downing v. Downing (pg. 48) Child support must be related to realistic needs of the child. CA: if parents’ income so disparate it’s unfair to apply guidlns o Remarriage and New Families (pg. 49) Pohlmann v. Pohlmann: later kids not considered for downward Approaches to New Families: first mortgage and second family New spouse’s income: states split; CA does not consider. o Change in Employment (pg. 50) Olmstead v. Ziegler: he voluntarily downsized Approaches/imputing income: voluntary, good faith, balancing, CA, change to care for kids, ALI, Relocation for employment & termination (pg. 50-51) o Incarceration: states split (pg. 51) o Retroactive modification – federal law prohibits it o Multi-State cases: modification (pg. 53) Uniform Interstate Family Support Act (UIFSA) Letellier v. Letellier: (UIFSA) and (FFCSOA) are consistent. For SMJ over support order from other state, P must be non-resident. Enforcement of Child Support (pg. 51 outline) o Federal: Child Support Recovery Act o Criminal Sanctions State v. Oakley: no more kids, narrowly tailored. o Interstate Enforcement of Child Support (pg. 52-53) Federal: Full Faith and Credit for Support Orders Act State: Uniform Interstate Family Support Act (UIFSA) Jurisdiction for Child Support (pg. 52 outline) o For enforcement & modification, ct needs SMJ and PJ over both parents. o PJ measured by int’l shoe minimum contacts standard. o Kulko v. Superior Court: due process limits jx over nonresident CHILD CUSTODY & VISITATION FACTORS (pg. 54 outline) Gender: (history – tender years presumption) (pg. 55) o Devine v. Devine, ALI, and UMDA Best Interest Standard (pg. 55) Race: (pg. 56) o Palmore v. Sidoti: (strict scrutiny); ALI Religion: Free exercise + establishment clause (pg. 56-57)
o Approaches; ALI Sexual orientation: (pg. 57) o Approaches; ALI Affairs: nexus approach (see above) Career: (pg. 58) o Rowe v. Franklin; ALI Wealth: not decisive unless unable to care for child; ALI Domestic Violence: (pg. 59) o Peters-Riemers v. Riemers; Approaches; ALI o Friendly Parent statutes: can be harmful to non-abusive parent. Physical Disability (pg. 59) o ADA; general rule (no presumption) JOINT CUSTODY (pg. 59-60) Approaches: presumption, preference, option Joint physical custody (doesn’t have to be 50/50 split) CA: presumption if parents agree ALI: different phrases (pg. 60) Visitation & Restrictions (pg. 60) o Restrictions ok: supervised, religious practice restricted, parent can’t live with unmarried partner, etc. o Sexual abuse o Non-Payment of child support: willful failure PARENT vs. NON-PARENT DISPUTES (pg. 61 outline) Troxel v. Granville: Court must give special consideration to parent’s decision, and should probably limit time/people/circumstances. Didn’t give actual standard Third-party visitation: all states have some kind of statutes Same-sex couples and visitation (pg. 61) o Equitable Parent Test (majority) o Jones v. Boring Jones: lesbian partner rebutted presumption o ALI (pg. 62) Parent by Estoppel De Facto Parent CHILD CUSTODY MODIFICATION (pg. 62-63) Majority standard: substantial change in circumstance + best interest A few states: just best interest UMDA: requires harm ALI: substantial change in circumstance + necessary for child’s welfare Changes in Circumstances (pg. 63) o Relocation: approaches, ALI, good faith